Children Testifying in Custody and Placement Proceedings

Child Custody BattleIn the family court setting, parents often find themselves disagreeing as to their children’s physical placement going forward. In Wisconsin, the court is required to consider a variety of factors, outlined in the statutes, in order to determine what is in the best interest of the child as part of a custody and placement determination.  One of these factors includes the requirement that the court must consider the wishes of the parties’ children. Most often, those wishes are incorporated in the Guardian ad Litem’s recommendation to the Court. As a result, this often leads to the question of whether the children have a voice, or a choice, in the proceedings, and whether they can meet with the Judge.

There are many concerns with revealing a child’s wishes for placement. It is important to remember that children are not small adults, or always able to know what is in their best interests, regardless of their level of maturity. This is why the Court will appoint a Guardian ad Litem: to determine what is in the best interest of the child. It can be very harmful to children to pressure them into making such a decision, and forcing them to choose between their parents. This also leaves the child vulnerable to retribution or pressure from an unhappy parent. For these reasons, it is extremely unlikely that the Judge will meet with the child, let alone have a child testify in court as to their wishes in a custody and placement proceeding.  In fact, in the combined experience of our firm, we cannot recall the last time this was done in any of our cases, if ever.

Further, it is important to note that children do NOT get to decide where they are going to live or how much time they spend with each parent in Wisconsin.  The court is required to at least hear what their wishes are but there are numerous other statutory factors that the court must consider as well.  Therefore, as a whole, the wishes of a child usually play a minor role, if any, in the decision of the court.   As a result, except in unusual situations, any testimony by a child in a custody or placement proceeding would likely have limited value.  This is why it is almost unheard of to have a child testify in court in these matters.

In Wisconsin, the Court appoints the Guardian ad Litem to conduct an investigation as to what is in the child’s best interest because the Judge does not have the resources to conduct that investigation. The Court also trusts that the Guardian ad Litem will protect the child from being placed in the middle of the parent’s placement and custody dispute. If you find yourself in a contentious custody and placement dispute that you fear your child may be placed in the middle of or if you feel your child’s best interest will not be sufficiently represented in court, call us at (414) 258-1644 to schedule a free initial consultation to discuss your case.

2 thoughts on “Children Testifying in Custody and Placement Proceedings

    • No. The parent with whom the child wants to live must file a motion. If there is a dispute, a Guardian ad Litem (an attorney for the child) will become involved and talk to the child. The Guardian ad Litem is required to relay the wishes of the child to the court, and why, but a child never gets to decide where he or she wants to live. However, depending on their age and the reasons for what they want, their wishes may be given great weight by the Guardian ad Litem and/or by the Court.

We welcome your comments or questions. We will do our best to try to respond. However, please be advised that we cannot give legal advice in this forum and all communications are for general informational purposes only. Communication should not be construed as forming an attorney-client relationship. This is an open forum and any information you provide may be posted and will not be held confidentially. By posting a comment or question, you are expressly giving consent for the publication of same. If you have any specific legal issues or concerns, we always recommend that you consult with an attorney in the county and state in which you reside.

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